1988 P Cr (PLP)

The applicant is facing trial under section 295(C), P.P.C. before the learned Sessions Judge, Sanghar. The brief facts giving rise to the present application are that on 27-12-1987 one Ghulam Mohammad lodged a report at P.S. Shahdadpur, inter alia, alleging therein, that he is Khatib at Jamia Masjid, Khatam Nabuwat, Tando Adam. He is also Provincial Convener of Majlis Amal Tahafuz Khatam Nabuwat (Sind), a member of Central Majlis Khatam Nabuwat Pakistan, and Amir Mujahideen Tahafaz Khatam Nabuwat Pakistan. In April, 1987 he had gone to Shahdadpur in connection, with some work where he had met with P.W. Mohammad Ishaque son of Ghulam Mohammad Advocate, with whom he saw a monthly issue of magazine "Ansarullah Rabwah" of February, 1987. He read the said magazine cursorily and asked Muhammad Ishaque as to wherefrom he had got the said magazine. Mohammad Ishaque told him that he had got the same from one Khalil Ahmed son of Bashir Ahmed resident of Anaj Mandi, Shahdadpur. Then he had a Photostat copy of the entire magazine and read the sane fully. In the magazine one article has been attributed to the Prophet Mohammad (peace be upon him). There are Ayats (verses) of Holy Qur'an and Ahadis of the Holy Prophet (peace be upon him) in which the Holy Prophet has been insulted. The contents of the article have also been given in the F.I.R. This application was addressed to the SP Sanghar, who sent it to the S.H.O. P.S. Shahdadpur for taking action and, therefore, the F.I.R. was recorded on 27-12-1987 at 5-00 p.m. However, it was pointed out by the learned counsel for the State that in fact name of the complainant is Allama Ahmed Mian Hammadi. The applicant was arrested, he moved an application for bail before the learned Sessions Judge, Sanghar, and he was granted interim bail on 30th December, 1987 by the learned Incharge Sessions Judge, Sanghar. However, after hearing the Advocates of the parties, the learned Sessions Judge was pleased to reject bail application and the applicant was remanded to judicial custody vide order, dated 13th March, 1988. I have heard the learned counsel for the applicant, learned counsel for the State, and have also gone through the documents produced alongwith bail application. It was contended by Messrs M.I. Memon and Syed Ali Ahmed Tariq Advocates that the F.I.R. was belated inasmuch as according to F.I.R. the complainant had gone through the magazine in question in April, 1987 but the F.I.R. was registered on 27-12-1987 and no ostensible explanation was offered by the prosecution That the magazine was found with Mohammad Ishaque and not with the applicant. That looking to the provisions o: section 295(c), P.P.C. no case is made out so far the present applicant is concerned. In support of their contentions the learned counsel have relied upon two unreported cases of this Court first being Criminal Bail Application 1644 of 1986 Syed Mohammad Yousuf v. The State decided on 6-11-1986 and Criminal Bail Application No. 482 of 1987 Mukhtiar Ahmed v. The State decided on 15-7-1987. The learned counsel for the State has opposed the grant of bail to the applicant on the ground that the applicant has been implicated by P.W. Mohammad Ishaq. That in any case the applicant was responsible for circulation of the magazine which contained the defamatory material. In support of his contention the learned counsel has relied upon PLD 1987 Lah. 456 and P L D 1988 Quetta

22. I have considered the contentions of the learned counsel. In order to appreciate the legal position one has to look at the provisions of section 295(C) P.P.C. which reads as under: "295-C. Use of derogatory remarks etc., in respect of the Holy Prophet-- Whoever by words, either spoken, or written, or by visible representation or by any imputation, innuendo, or insinuation, directly or indirectly defiles the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine." The bare reading of the above provision will show that the persons who can be accused of this offence will be those who by their, words, either spoken or written or by visible representation or by imputation, innuendo, or insinuation directly or indirectly defile, the sacred name of the Holy Prophet Muhammad (peace be upon him). In the present case there is no allegation of whatever nature against the applicant, to bring his case within the mischief of section 295-C, P.P.C. at present. In Criminal Bail Application No. 1644 of 1986 (Syed Mohammad Yousuf) referred to above, my learned brother Abdul Qadeer Chaudhry, J. of this Court (as he then was) was pleaded to grant bail before arrest to the applicant in a case under section 298(e), P.P.C. The photo copy of F.I.R. and its translation produced alongwith the bail order show that the above case was in respect of a similar issue containing similar article in the magazine. In Cr. B.A. No.482/87 the applicant was prosecuted under section 295(c), P.P.C. for reciting 'Durood Sharif' and the bail was granted mainly on the ground of delay, as well as material placed before this Court was not sufficient justifying detention of the accused in custody. It appears that even the complainant of the present case was complainant in the above case which was subject-matter in Bail Application No.482 of 1987. As far as the cases relied upon by the learned counsel for the State are concerned the first case of Malik Jehangir M. Joya v. The State (P L D 1987 Lah. 458) relates to use of Kalama Tayyaba by Qadianis and has no relevancy so far the facts of the present case are concerned. Similarly the case Zaheeruddin and 4 others v. The State (P L D 1988 Quetta 22) also relates to 'Kalama Tayyaba' and not any publication and, therefore, is not relevant to the facts of the present case. In view of the above discussion I am of the considered view that the case of the applicant requires further inquiry with regard, to nature of offence committed by him, and therefore, I direct that the applicant shall be released on bail on furnishing surety in the sum of Rs.50,000 and P.R. bond in the like amount to the satisfaction of the learned Sessions Judge, Sanghar. However, if during the trial any tangible evidence is brought against the applicant on record, the learned Sessions Judge will be at liberty to cancel his bail. S.A./K-72/K Bail granted.